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STATE OF MICHIGAN
COURT OF APPEALS


GLEN A. MAYLE, SR., Next Friend of GLEN A. MAYLE, JR., a Minor, Plaintiff-Appellee, v LAWRENCE FULLER and EMMA FULLER, Defendants-Appellants, and TIM FULLER and MARJORIE FULLER, Defendants.

UNPUBLISHED October 8, 1999

No. 210589 Saginaw Circuit Court LC No. 94-004943 NO

Before: Holbrook, Jr., P.J., and Zahra and J.W. Fitzgerald*, JJ. PER CURIAM.

This case arose when five-year-old Glen A. Mayle, Jr. (hereinafter referred to as "plaintiff") was bitten by a dog owned by Tim and Marjorie Fuller, on property allegedly under the control of Tim Fuller's parents, defendants Lawrence and Emma Fuller. Prior to trial, the suit against Tim and Marjorie Fuller was severed from the suit against Lawrence and Emma Fuller, and the trial proceeded against the latter under a theory of premises liability. A jury found in favor of plaintiff, awarding $160,000 in damages. Defendants now appeal as of right. We reverse. I Tim and Marjorie Fuller rented a home next to, and owned by, Lawrence and Emma Fuller. The two houses were situated only a few yards apart, with no clear delineation between the lots. Both couples commonly used both properties. Lawrence and Emma also owned a larger piece of unimproved property directly behind the two houses, referred to as the "shale pile" throughout the lower court proceedings. The rental agreement between the Fullers was not reduced to writing, and * Former Supreme Court Justice sitting on the Court of Appeals by assignment. -1

there was no express agreement regarding which portions of Lawrence and Emma's three properties Tim and Marjorie were entitled to use in return for their rent payment. There was no dispute that Lawrence and Emma retained considerable control over all three parcels. Tim and Marjorie Fuller's dog was chained to a dog coop in the shale pile area on the day plaintiff was injured. It is undisputed that there is no evidence of any prior vicious tendencies displayed by the Fullers' dog. Tim Fuller had been supervising his daughter and plaintiff while they played in the yard. He went inside after sending plaintiff home, but did not realize plaintiff had returned to play. The children saw something shiny near the dog coop and proceeded to investigate. Even though plaintiff and other children had been repeatedly warned to stay away from the dog, plaintiff went into the area surrounding the dog coop where the dog proceeded to bite plaintiff on several areas of his body, particularly his face, which caused serious injuries. II Defendants argue that the trial court erred in denying their motion for summary disposition. We agree. This Court reviews the grant or denial of summary disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 672 NW2d 201 (1998); Meahger v Wayne State University, 222 Mich App 700, 708; 565 NW2d 401 (1997). A motion for summary disposition filed pursuant to MCR 2.116(C)(10) may be granted only when there is no genuine issue of material fact, and the moving party is therefore entitled to judgment as a matter of law. Spiek, supra at 337. Plaintiff's amended complaint set forth two claims: (1) negligence based on a keeper or caretaker theory of liability; and (2) premises liability. A prima facie case of negligence based on temporary control as a caretaker of an animal requires a showing that defendants either knew or should have known of the animal's vicious or dangerous propensities, and that the duty to protect against that foreseeable harm was breached. Trager v Thor, 445 Mich 95, 106; 516 NW2d 69 (1994). The Trager Court applied the following standard of care to non-owner caretakers of animals: [A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen. [Trager, supra, at 106.] In this case, defendants may have maintained control over the premises, but there was no evidence to suggest that defendants had temporary control of the dog. In fact, defendants were at work at the time plaintiff was bitten by the dog. Moreover, even if it could be established that defendants were caretakers of the dog, it is undisputed that the dog had never bitten anyone previously and had been nothing but friendly with people. Because the dog showed no prior vicious tendencies, we cannot conclude that plaintiff's injuries could have been reasonably foreseeable to defendants. Therefore, we find that the trial court erred in denying defendants' motion for summary disposition as to the negligence claim.

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Likewise, we find that summary disposition should have been granted on plaintiff's premises liability claim. In Preston v Sleziak , 383 Mich 442, 451-453; 175 NW2d 759 (1970), the Court set forth the duty owed by a possessor of land to social guest licensees: The duty which occupiers of land owe their licensees is best expressed by 2 Restatement of Torts (2d),

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